JUDGMENT

Introduction

[1] This is an appeal from the judgment of the Court of Appeal dated 13 October 2018 in terms of which it allowed the appeal by the defendants against the judgment of the High Court at Pulau Pinang dated 24 October 2017. The High Court had allowed the plaintiffs claim, revoked the grant of probate issued to the defendants and inter alia declared that the will dated 18 December 2013 alleged to be the last will and testament of one Chin Joo Ngan ("deceased") as invalid and the deceased had died intestate.

[2] The appeal was by leave granted by this court on 18 March 2019 on the following questions of law:

First Leave Question

i. Whether the concept of secret trust is applicable to Malaysia as there is no decision regarding the applicability of secret trust?

Second Leave Question

ii. Whether secret trust is applicable in a case involving the issue of testamentary capacity of a testator?

Third Leave Question

iii. Whether secret trust is contradictory to the Malaysian Wills Act 1959 and/or is against public policy as it can be abused?

[3] We heard the appeal on 24 February 2020 and at the conclusion of arguments of the parties, we dismissed the plaintiffs/appellants appeal with costs. We now give the detailed grounds for our decision.

[4] For convenience, we will refer to the parties by their designations at the High Court: the appellants as the plaintiffs and the respondents as the defendants.

Factual Background And Antecedents Proceedings

[5] The 1st plaintiff and the 2nd plaintiff are the lawful children of the deceased.

[6] The 1st defendant is the elder brother of the deceased and the 2nd defendant is the son of the 1st defendant and nephew of the deceased. Both of the defendants reside in Australia.